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Does Infidelity Matter

Sometimes marriages fail due to the breach of trust caused by the infidelity of one party to the marriage. The resulting anger fueled by the infidelity often times spills over into the divorce process. And this anger can lead to a messy divorce just because one party “wants to get back” at the other. With this in mind, I wanted to get to the bottom of infidelity and its ramification in a divorce proceeding from the perspective of the law. So, I sat down for a chat with Carolann Mazza, a Ft. Lauderdale-based collaborative family attorney.

TBK: Carolann, Florida is a no-fault divorce state; what does that actually mean?

MAZZA: Florida officially became a “no-fault” divorce state in 1971. Prior to that, the partying asking for the divorce had to prove certain reasons for obtaining a divorce. Those reasons included actions such as infidelity, misconduct, and abuse. Now, as a “no-fault” divorce state, the Florida courts only have to find that the marriage is irretrievably broken between the spouses in order to dissolve a marriage or grant a divorce.

TBK: So how does the court view infidelity in divorce cases?

MAZZA: The Florida alimony statute specifically allows the court to consider adultery and the circumstances surrounding the adultery when determining an alimony award. While the standard for awarding alimony continues to be the need of the spouse seeking the alimony and the ability to pay of the other spouse, a court can consider evidence of adulterous activities by either spouse. Also, when determining an equitable division of marital assets and marital debt, the court may consider evidence of infidelity if there is an allegation that the infidelity caused the depletion of marital assets or an increase in marital debt.

TBK: In those cases where infidelity occurred does it affect the awarding of spousal support positively or negatively?

MAZZA: The answer is best illustrated by example of case law. In Escobar v. Escobar, the district court concluded that the alimony statute allows a trial court to refuse to consider the adultery of a non-alimony seeking spouse when this evidence is offered by an alimony-seeking spouse solely to obtain or increase an award of alimony. The Florida Supreme Court approved this result. In Noah v. Noah, the trial court awarded a disproportionate distributional scheme as lump sum alimony because of the husband’s adulterous affair. The Supreme Court upheld the district court’s reversal, reiterating the primary factors to be used are need and ability to pay and finding that those factors were clearly met, without considering the adulterous affair.

TBK: For the spouse committing the infidelity, does that action impact child custody and/or visitation rights?

MAZZA: In the State of Florida shared parental responsibility is the rule unless the court finds there would be detriment to the child(ren) or if the best interest of the child(ren) dictates otherwise. While the statute does not specifically state as a factor “infidelity” as one of the determining factors for a finding of the best interest of the child(ren), it does contain two factors that could relate to infidelity. The two factors are: 1) “The moral fitness of the parents;” 2) “Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule” (The “catch-all” factor). I am not aware of any recent cases that specifically utilized infidelity as a factor to limit parenting and/or time-sharing. In my opinion, there would have to be extremely egregious circumstances for this to happen in a conflict over children.